Kailashchandra and Others vs Ghanshyam and Others

A.S. Chandurkar, J.—In view of notice for final disposal the learned counsel for the parties are heard at length.

Since both these appeals impugn judgment dated 18/07/2012 passed by the trial Court below Exhibit-5 in Spl.C.S. No. 62 of 2010, they are being decided by this common judgment.

It is the case of the respondent No. 1 in both the appeals that on 29/01/2010 an agreement was entered into for sale of agricultural land admeasuring 4H 28R. The rate agreed was Rs. 14 lakhs per acre that was to be paid within period of six months. A token amount of Rs. 5 lakhs being earnest amount was paid to the defendants. It was further agreed that the land would be measured and the deal would be completed before the stipulated period. According to the plaintiff no steps were taken by the defendants to complete aforesaid agreement and hence on 01/07/2010 a notice was issued to the defendants calling upon them to remain present before the Sub-registrar on 26/07/2010 and accept the consideration. It is the further case of the plaintiff that he was present before the Sub-Registrar on 26/07/2010 but the defendants did not turn up. On 19/07/2010 a reply was sent to the notice issued by the plaintiff to which there was a further reply by the plaintiff. Ultimately on 06/10/2010 suit for specific performance of aforesaid agreement came to be filed. In alternate there was a claim for damages.

The defendant No. 1 filed written statement and took the stand that there was no agreement entered into but the transaction between the parties was a loan transaction. A further stand was taken that the signature of defendant No. 1 was obtained on plain paper and the terms mentioned therein were inconsistent with each other. In short, it was stated that the document executed was a nominal document. The defendant No. 2 also filed his written statement and took the stand that the land in question belonged to the joint Hindu family and that the transaction between the plaintiff and the defendant No. 1 was in the nature of a money lending transaction. It is the further case of defendant No. 2 that he had not signed aforesaid document.

The plaintiff moved an application for temporary injunction praying that the defendants be restrained from alienating or creating third party rights in the suit property. This application was opposed by the defendants and the trial Court by the impugned order came to prima facie conclusion that there was some agreement between the parties and therefore a case for grant of temporary injunction was made out. It accordingly restrained the defendants from alienating the suit property. Hence these appeals filed by both the defendants.

Shri R.L. Khapre, learned counsel for the appellant in both the appeals submitted that there was no concluded contract between the parties. It was submitted that the document in question merely contemplated an agreement to further enter into an agreement of sale. According to learned counsel perusal of the document dated 29/01/2010 indicated that no terms had been agreed to between the parties and it was merely stated that a token amount of Rs. 5 lakhs had been received. It was further submitted that the document was not signed by the defendant No. 2. The case of the plaintiff that there was legal necessity on the part of the defendants to alienate the suit property was also not acceptable in absence of any material in that regard. It was then submitted that the trial Court without recording any finding that a prima facie case had been made out, proceeded to restrain the defendants from alienating the suit property. The equities were also not considered by the trial Court while passing the order of injunction. It was then submitted that the document in question was neither adequately stamped nor was it registered. Hence no injunction could have been granted by relying upon said document. In support of his submissions, the learned counsel placed reliance on following decisions :

(i) Conwood Agencies Pvt. Ltd. Vs. Namdeo Pandurang Panchal and Another,

(ii) Shri Nivruttinath Yatra Khajur Donation Trust Vs. The Sub-Divisional Officer and Others,

(iii) Shantabai Dada Koli Vs. Bhujgonda Adagonda Patil and Others,

(iv) Sheshrao Bhikaji Kale Vs. Damodar Pandhare,

(v) 2009(2) Mh.L.J.282 Pierre Antonio Lobo Vs. Vimal Shankar Salgaonkar and Ors.

(vi) Kachhi Properties Satara and Power of Attorney Salim Gaffar Kachhi Vs. Ganpatrao Shankarao Kadam, Uttam Dinkar Kada and Bhalerao Dinkar Kadam,

(vii) Ramesh Vajabhai Rabari Vs. Pratiksha Real Estate Pvt. Ltd. and Others Etc.,

On the other hand Shri A.A. Naik, learned counsel for respondent No. 1 in both the appeals supported the impugned order. According to him, the document dated 29/01/2010 was an agreement for sale and the defendants had agreed to sell the suit property to the plaintiff. The rate at which the land was to be sold was stated in the agreement along with the time for executing the sale deed. Merely because the word ''token'' had been used, same would not mean that there was no agreement between the parties. It was submitted that a sum of Rs. 5 lakhs had been admittedly paid to the defendants. It was then submitted that both the defendants had taken inconsistent stands in their written statement regarding the transaction. At this prima facie stage, the contents of the agreement would have to be taken at their face value while considering the prayer for interim injunction. It was therefore submitted that the agreement being drafted by lay persons, such terms had been used. It was then submitted that the aspect regarding the document being insufficiently stamped or not being registered was not relevant while considering the prayer for interim injunction. It was further submitted that the trial Court having granted the order of temporary injunction, same did not call for any interference especially when the same was operating from 18/07/2012 till date. It was further submitted that no case of irreparable loss had been made out by the defendants and therefore the trial Court was justified in passing the impugned order. In support of aforesaid submissions, learned counsel relied on following judgments :

(i) Sanjay Somani and Another Vs. Vishnupant Shahane,

(ii) S. Kaladevi Vs. V.R. Somasundaram and Others,

(iii) Maharwal Khewaji Trust (Regd.), Faridkot Vs. Baldev Dass,

(iv) Pralhad Jaganath Jawale and Others Vs. Sau. Sitabai Chander Nikam and Others, .

(v) Formac Engineering Ltd. and Another Vs. Municipal Corporation of Greater Mumbai and Others, .

(vi) Marine Container Services (I) Pvt. Ltd. Vs. Rajesh Dhirajlal Vora, .

I have considered the respective submissions and I have gone through the documents filed on record. The respective contentions will have to be considered by keeping in mind the aspect that the order under challenge is an interlocutory order granting temporary injunction during pendency of the suit. The considerations before the appellate Court while examining the correctness of an interlocutory order are well settled in view of decision of the Supreme Court in Wander Ltd. and Another Vs. Antox India P. Ltd., .

The document dated 29/01/2010 prima facie appears to have been drafted by the parties without the assistance of any person having legal background. The description of the land, rate at which the same was agreed to be sold coupled with the period of completing the transaction have been mentioned in the said document. It is further stated that the land would be measured and deal would be completed before the stipulated period. Amount of Rs. 5 lakhs has been shown to have been received pursuant to said document. It is on this basis that the trial Court has observed that said document reflected a transaction between the parties in respect of the suit land. A prima facie consideration of aforesaid document after the same is read as a whole indicates the intention on the part of the defendants to sell the same @ Rs. 14 lakhs per acre. It is pursuant to this reference that a sum of Rs. 5 lakhs was paid to the defendant No. 1.

A mini trial cannot be conducted while considering an application for grant of an interlocutory order. If the prima facie consideration of the material on record by the trial Court appears to be satisfactory and the conclusion arrived at is found to be prima facie supported with the material available on record, then merely because another view of the matter is possible, the same would not be a ground to take such view in a misc. appeal as held by the Supreme Court in Wander Ltd.(supra). After considering aforesaid document coupled with the exchange of notices and the two demand drafts of Rs. 12 lakhs each prepared by the plaintiff for being paid to the defendants, the trial Court has proceeded to grant interim injunction. Considering the decision of learned Single Judge in Marine Container Services (supra) and Sanjay Somani (supra), at this interlocutory stage, the question regarding the document being insufficiently stamped or not being registered is not required to be gone into at this stage. Same would be the matter to be considered by the trial Court during the course of the trial. Hence submissions in that regard made on behalf of the appellant cannot be accepted. The decision of learned Single Judge in M/s. Conwood Agencies (supra) is clearly distinguishable on facts.

Considering the observations of the Supreme Court in Maharwal Khewaji Trust (supra) and by learned Single Judge in Pralhad Jaganath Jawale (supra), in absence of any case of irreparable loss, the nature of the suit property including its title does not deserve to be changed. The decision in case of Ramesh Vajabhai Rabari (supra) is clearly distinguishable in view of the peculiar facts therein.

In so far as the plea regarding legal necessity, same would be a matter to be considered and decided at the trial. So also the aspect of the document dated 29/01/2010 being duly signed or otherwise is a matter of evidence.

Thus taking an overall view of the matter, it cannot be said that the discretion exercised by the trial Court in granting interim injunction deserves to be interfered with. It is further to be noted that the order of interim injunction is operating since 18/07/2012 for period of more than three years. There is however one aspect in so far as balancing of equities between the parties is concerned. While the defendants have been restrained from alienating the suit property, the plaintiff also deserves to be put to terms while continuing the injunction in his favour. Taking a prima facie view of the matter and considering the provisions of Section-16(c)(i) of the Specific Relief Act, the plaintiff can be directed to deposit part of the consideration mentioned in the document dated 29/01/2010 as condition for continuing the interim relief. The rate of the land mentioned in the document dated 29/01/2010 is Rs. 14 lakhs per acre and in the plaint it is averred that initially land admeasuring 5 acre was to be purchased by the plaintiff. Hence with a view to balance the equities, the plaintiff can be directed to deposit consideration for the land admeasuring 5 acre as per the rate stipulated in the document dated 29/01/2010. This would safeguard the interests of the defendants till the suit is finally decided.

Accordingly following order is passed :

(i) The order of temporary injunction passed by the trial Court on 18/07/2012 stands confirmed subject to the plaintiff depositing in the trial Court sum of Rs. 70 lakhs within period of eights weeks from today. This deposit shall be without prejudice to the rights of the parties and shall abide by final adjudication of the suit.

(ii) The amount if deposited shall be invested by the trial Court in Fixed Deposit.

(iii) As the suit has been filed in the year 2010, the proceedings before the trial Court are expedited and the trial Court shall decide the suit on its own merits by the end of April 2016.

(iv) It is made clear that the observations made by the trial Court in the impugned order or the observations made in this order are only for the purposes of considering the prayer for interim injunction and the trial Court shall not be influenced by any such observations made in said orders.

(v) Appeals are disposed of in aforesaid terms. No order as to costs.